Van Tran Electric Corp.

632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Van Tran Electric Corporation and International Association of Machinists and Aerospace Workers, AFL-CIO. Case 14-CA-5716 December 31, 1970 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Upon a charge filed on July 31, 1970, by Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on Van Tran Electric Corporation, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 14, issued a complaint on August 14, 1970, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on or about July 24, 1970, following a Board election conducted pursuant to an Agreement for Consent Election in Case 14-RC-6381 the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate; I and that, commencing on or about July 28, 1970, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represent- ative, although the Union has requested and is requesting it to do so. On August 25, 1970, Respon- dent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and requesting that the complaint be dismissed in its entirety. On October 2, 1970, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, together with exhibits and a memorandum in support thereof, alleging that there are no factual issues warranting a hearing in this proceeding because all issues and contentions of the Respondent were disposed of by the Regional Director and the Board in the representation proceed- ing in Case 14-RC-6381. Accordingly, the General Counsel moves the Board to grant the Motion for I Official notice is taken of the record in the representation proceeding, Case 14-RC-6381 as the term "record" is defined in Sees 102 68 and 102 69(f) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosvstems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, Summary Judgment. Subsequently, on October 8, 1970, the Board issued an Order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed a response to Notice to Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its response to the Motion for Summary Judgment, as in its answer to the complaint, the Respondent contends that the certification issued to the Union on July 24, 1970, is invalid by reason of the Regional Director's failure to investigate the Respon- dent's objections to the election conducted on March 20, 1970. As an alternative to dismissal of the complaint in this proceeding, the Respondent re- quests the Board to order the Regional Director to investigate the objections, or that the Board remand this case to a Trial Examiner for the purpose of determining the merits of the allegations raised by the Respondent in its answer. For the reasons related below, we find no merit in the Respondent's conten- tions. The election in Case 14-RC-6381 was conducted on March 20, 1970, pursuant to an Agreement for Consent Election executed by the Respondent and the Union, and approved by the Regional Director. The tally of ballots served on the parties after the election reflects that, of 66 votes cast, 31 were cast for the Union, 30 were cast against the Union, and 5 were challenged. Pursuant to the terms of a settlement agreement entered into by the Respondent and approved by the Regional Director in Case 14-CA-5481, the challenges to the five votes were resolved. The ballots were opened and counted, a revised tally of ballots was issued reflecting that the Union had been selected by a majority of the valid votes cast, and on July 24, 1970, the Regional Director certified the Union as the bargaining representative of the Employer in the unit hereinafter found appropri- ate. In the interim, on May 15, 1970, the Respondent filed with the Regional Director a document entitled, "Motion to File Objections to Conduct Affecting Election," accompanied by the five objections to the 1968), Golden Age Beverage Co, 167 N LRB 151, InlertypeCo v. Penello, 269 F Supp 573 (D C Va, 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA 187 NLRB No. 89 VAN TRAN ELECTRIC CORP. election. On the same date the Regional Director advised the Respondent that its objections were untimely and that the Board's Rules and Regulations make no provision for any extension of time of the period within which objections are required to be filed. Thereafter, the Respondent filed with the Board a Request for Review, which was denied on June 1, 1970, on grounds that the Board will not entertain an appeal from a Regional Director's determinations arising under an Agreement for Consent Election. It is well-established policy of the Board, in the absence of newly discovered or previously unavaila- ble evidence, or special circumstances, not to permit litigation in an unfair labor practice case of issues which were or could have been raised in a prior representation proceeding.2 It is clear that the Respondent's defense to the refusal-to-bargain allega- tion here is identical to the issue raised and decided in the underlying representation case, and, accordingly, is not a permissible subject for litigation in this proceeding. Moreover, the election in the underlying representa- tion case was conducted pursuant to an Agreement for Consent Election, which specified on its face that determinations by the Regional Director are final and binding. It is the Board's policy not to undertake to review the merits of such determinations unless it is shown that there has been fraud, misconduct, or such gross mistakes as to imply bad faith and support a conclusion that the Regional Director's rulings were arbitrary or capricious.3 The Board has applied this standard even in cases, where, had the Board originally considered the facts, it might have reached a different result. On the record here, and contrary to the contention of the Respondent, we are unable to conclude that the Regional Director's determinations in Case 14-RC-6381 were arbitrary or capricious. On the basis of the foregoing, we find that the Respondent had, and utilized, the opportunity to raise and have decided in the prior representation case in the forum it had chosen, the issues which it now raises by its answer and response to the Notice to Show Cause. The Respondent does not allege any newly discovered or previously unavailable evidence, or the existence of any special circumstances which would require the Board to examine the determination made by the Regional Director in the prior representation proceeding. Accordingly, as the Respondent has not raised any issue properly litigable in this unfair labor practice proceeding, we shall grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: 2 See Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Sections 102.67(f) and 102.69(c). 3 Mitchiyoshi Uyeda, d/b/a Udaco Manufacturing Company, 164 NLRB FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 633 At all times material herein, Respondent has maintained its principal office and place of business at Route 40 West in the city of Vandalia, State of Illinois, herein called the Vandalia plant. Respondent is, and has been at all times material herein, engaged in the manufacture, sale, and distribution of electric and electronic transformers and related products. Respondent's plant located at Vandalia, Illinois, is the only facility involved in this proceeding. During the year ending December 31, 1969, which period is representative of its operations during all times material hereto, Respondent, in the course and conduct of its business operations, purchased and caused to be transported and delivered at its Vandal- ia, Illinois, plant electric and electronic parts for transformers, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its plant in Vandalia, Illinois, directly from points located outside the State of Illinois. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aeros- pace Workers , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Respondent's Vandalia, Illinois, plant exclud- ing office clerical and professional employees, guards and supervisors as defined in the Act. 2. The certification On March 20, 1970, a majority of the employees of Respondent in said unit, in a secret ballot election 700, 701-702; Summer Sand & Gravel Company, 128 NLRB 1368, 1371, enfd. 293 F.2d 754 (C.A. 9). 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conducted under the supervision of the Regional Director for Region 14, designated and selected the Union as their representative for the purposes of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on July 24, 1970, and the Union continues to be such exclusive representative within the meaning of Sec- tion 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about July 28, 1970, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about July 28, 1970, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since July 28, 1970, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recogniz- ed bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Van Tran Electric Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The following employees of the Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees at the Respondent's Vandalia, Illinois, plant exclud- ing office clerical and professional employees, guards and supervisors as defined in the Act. 4. Since July 24, 1970, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about July 28, 1970, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent had engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor VAN TRAN ELECTRIC CORP. Relations Board hereby orders that Respondent, Van Tran Electric Corporation, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment, with International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All production and maintenance employees at the Respondent's Vandalia, Illinois, plant exclud- ing office clerical and professional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Vandalia, Illinois, plant copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." APPENDIX 635 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All production and maintenance employees at the Respondent's Vandalia, Illinois, plant excluding office clerical and professional employees, guards and supervisors as defined in the Act. VAN TRAN ELECTRIC CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4167.